ELECTORAL ACT

‘DIASPORA FUNDING OF POLITICAL PARTIES IS LEGAL,’ SAYS BALOGUN

Against the backdrop of the controversy that has trailed Diaspora funding of elections in Nigeria, AKINTAYO BALOGUN, a legal practitioner argues that crowdfunding being proposed by Nigerians in the diaspora in support of Mr. Peter Obi’s presidential bid does not infringe the Electoral Act

PROPRIETY OF THE SPONSORSHIP/FUNDING OF POLITICAL PARTIES/ASPIRANTS BY INDIVIDUALS OR ASSOCIATIONS UNDER THE 1999 CONSTITUTION AS AMENDED AND THE ELECTORAL ACT 2022 

The recent outing of the Attorney General of the Federation, Mallam Abubakar Mohammed, SAN, on issues surrounding the funding or sponsorship of candidates and political parties for the 2023 general elections has raised much dust as to the propriety or otherwise of this funding. The Attorney General had stated that “Any Nigerian who lives abroad, funding the campaign of Peter Obi shall be arrested. It is against our electoral law”.

He further stated that “We’ve received a signal that some individuals, mostly Nigerians living abroad have taken it upon themselves to fund the campaign of Mr. Peter Obi who’s the Presidential candidate of the Labour Party in the forthcoming Presidential election”.

Also citing in parts, he stated thus “What these individuals failed to understand is that Nigerian is a democratic nation governed by democratic rules and regulations. It is against the electoral act for those living abroad to sponsor any candidate in an election. Those involved should desist from such act or have us to contend with. We will resist it by all means. Such fund cannot enter Nigeria. Although we have put measures on ground to apprehend those who will get themselves involved in such an act.”

His statement was possibly in reaction to the report that Nigerians in the diaspora have formed groups of committees to launch crowd funding initiatives for the presidential candidate of the Labour Party (LP), Mr. Peter Obi. It is alleged that they plan to unveil in the coming days a crowdfunding portal with a target to raise $150 million from Obi’s supporters in the diaspora and N100 billion from supporters in Nigeria.

With utmost respect to the Attorney General of the Federation and everyone raising concern/grievances against the planned crowdfunding or any funding coming from the diaspora or within, the position taken by the A.G is inconsistent with the provisions of the 1999 Constitution and Electoral Act 2022. There is no provision of the Constitution or of the Electoral Act that places a blanket ban on the support of elections, political parties, or support of candidates from the diaspora. Rather the Constitution made specific provisions as to the procedure to be followed when support for electioneering procedure is coming from outside the country. The following subheads have been raised to discuss these issues arising from funding electioneering activities in Nigeria.

1. Does the Constitution or Electoral Act forbid individuals, groups, or Associations in the diaspora from raising funds on behalf of a PARTY or a CANDIDATE?

The only relevant section of the Constitution in respect of funding or owning assets by political parties in the diaspora is provided for under Section 225(3) of the Constitution which states thus:

(3) No political party shall –
(a) hold or possess any funds or other assets outside Nigeria; or
(b) be entitled to retain any funds or assets remitted or sent to it from outside Nigeria.

(4) Any funds or other assets remitted or sent to a political party from outside Nigeria shall be paid over or transferred to the Commission within twenty-one days of its receipt with such information as the Commission may require.
The above provisions of the Constitution do not prohibit or stop a party from having assets or receiving funds from outside the Country. The Constitution only provides for procedures by which the funds are to be brought into the country and utilized. To complement the provisions of the Constitution, Section 86 of the Electoral Act provides thus:

86.—(1) Every political party shall submit to the Commission a detailed annual statement of assets and liabilities and analysis of its sources of funds and other assets, together with statement of its expenditure including hard and soft copy of its list of members or in such a form as the Commission may require.
Contrary to the statement by the Attorney General of the Federation, by these provisions, political parties are not banned from owning assets outside the country. The only duty that lies on the political party is to ensure that the assets belonging to the political parties are paid over or transferred to INEC within twenty-one days of its receipt in Nigeria. Once the assets are declared and/or transferred to INEC in line with the provisions of the Constitution and the Electoral Act, the political parties are free from any wrongdoing. The Attorney General of the federation and any other interested party cannot read into the Constitution or Electoral Act what does not exist or is not contained there. The provisions here are clear and unambiguous and should be given their ordinary meaning. In the case of A-G, ONDO STATE v. A-G, EKITI STATE (2001) 17 NWLR (Pt.743) 706 at 756, PARAS. D – E, Kutigi, J.S.C. (later C.J.N), in his lead Judgment, stated the Rules governing the interpretation of statutes as follows:

“It is certainly a cardinal principle of interpretation that where in their ordinary meaning the provisions are clear and unambiguous effect must be given to them without resorting to any aid internal or external. It is the duty of the court to interpret the words of the law maker as used. Those words may be ambiguous, but even if they are, the power and duty of the court to travel outside them on a voyage of discovery are strictly limited.”

An action can only be an issue against the political parties in the event that these parties fail to declare their asset or falsely declare their assets or fail to transfer same to INEC within the said 21 days as provided for in the Constitution. See Section 86(3) of the Electoral Act which makes provision for the punishment to be meted out to anyone who acts outside the provision of the Electoral Act.

Furthermore, Section 90(1) of the Electoral Act also provides that a political party shall not accept or keep in its possession any anonymous monetary or other contribution, gift, or property, from any source. The Constitution and the Electoral Act place much responsibilities on Parties. However, it does not restrict or place a blanket ban on the parties from receiving donations and support from known and traceable sources. The duty is on the political party to ensure that it can trace the source of anyone that sends financial or material support to the party. Same should be remitted to the Commission if it comes from outside the country. This is the position of the Constitution and the Electoral Act on political parties.

Furthermore, one of the points of emphasis in this discussion is in respect of funds contributed and being sent to a Party and funds being sent to the candidate directly. The makers of the Constitution and the Electoral Act were careful in the choice of words, particularly in the use of ‘political Party’ and ‘Candidate’. The Constitution of the Federal Republic of Nigeria makes no provision or gives guidelines as to funds received from Nigerians abroad and sent to the candidate directly or to his support groups. The candidate and his support groups are different entities from the political party on whose platform the candidate seeks to be elected even though they all have the same intention of winning the elections. Candidates are therefore not bound by the provision of 225(3) of the Constitution.

This provision did not restrict any entity or individual contributions from the diaspora or in Nigeria in support of any candidate. Contributions can be made individually from anywhere in the world to the candidate without recourse to the party.

It must be noted however that Individual or entity contributions made in support of an aspirant or party shall not exceed N50 Million per contributor. Section 88(😎 of the Electoral Act however provides for individual contribution. It states thus:
“88(😎 No individual or other entity shall donate to a candidate more than N50,000,000”.

In essence, a candidate may receive contributions in excess of N50 Million as long no single individual or entity contributes an amount in excess of the said N50 Million. A duty is placed on the candidate to ensure that no contribution of any single individual or entity is in excess of N50 Million Naira or its equivalent in any foreign currency. A candidate can have as much as a billion naira sent to him as long as no single individual or entity sent in excess of N50 Million

An individual who contravenes this above provision of the Act is liable on conviction to a maximum fine of N500,000 or imprisonment for a term of nine months or both. This is probably where the powers of the Attorney General can come in to prosecute individuals or entities that contribute above the threshold.

2. Is there a limit to the amount that can be raised in support of a candidate?

This is where the powers of the Commission come in to play. Now INEC by virtue of Section 87(1) of the Electoral Act has the powers to determine whether the $150 Million being contemplated by Nigerians in the diaspora or the N100 Billion being contemplated for Nigerians in Nigeria, is either beyond or is within the limit. The section provides thus:
87.(1) The Commission shall have power to place limitation on the amount of money or other assets which an individual can contribute to a political party or candidate and to demand such information on the amount donated and source of the funds.

Unfortunately, till date, the Commission is yet to make a statement or give directives placing a cap or limit to the support of political parties or give any directive as to the amount that can be raised and given to a candidate for his campaigns/support groups. Until the Commission gives a directive, funds being raised are within the ambit of the law and there is no ground for any prosecution by the Attorney General or any functionary of the government. So until the commission makes an informed statement, supporters of a party are at liberty to raise as much as they would but not above N50 Million per head to the candidate or the political party.

Furthermore, the Electoral Act 2022 makes specific provisions for the amount that a political party must spend for a particular level of election. A political party is not allowed to spend beyond N5 Billion for the Presidential election. Note however that the amount raised by the political party or a candidate is different from the amount used in prosecuting the election. A party may raise in excess of N5 Billion Naira for its presidential election but must not spend above that amount as provided for in the Electoral Act. The wordings of these provisions of the Electoral Act are very clear and unambiguous and do not call for any other aids for their construction. See DANKWABO V ABUBAKAR & ORS(2015)LPELR-25716 (SC).

3. Can a Party or Candidate be held liable for funds being raised without their knowledge, consent, or approval?

The hopes and expectations for the next political dispensation in Nigeria amongst Nigerians at home and abroad have created a situation where many support groups are formed and registered, funds are being raised and moved across the borders, rallies are being organized and support meetings are being held without the slightest knowledge, consent, and approval of the party or the candidate. The parties or candidates only get to know some of the support groups and funding through the media without having any say in their management. Some of these support activities are being done out of goodwill and support for a particular candidate or political party. However, some of these groups are using the same as an avenue to perpetuate fraud and launder funds under the guise of supporting a particular candidate. During the campaigns leading to the elections that were held in 2015, we had reports of persons who gave out their entire lives saving in support of candidates in the election but some of the candidates never got to know or meet the majority of the people, especially the poor masses that donated all their resources for the course. How then do you hold a person or party liable for what was done in their name without their knowledge, consent, or directives?

Furthermore, if individuals decide to contribute to the campaign of a candidate but refuse to send the monies to the party or the candidate, can the party or candidate compel them to do that? No political party has powers over monies raised for an election except for the monies directly sent to it by its followers or supporters. The candidate can also not be held liable for funds raised and meetings held without their knowledge or consent.

Therefore, it would be in the interest of support groups to always link up with their candidate or the party they are supporting. Parties and their candidates have a duty to issue public disclaimers if they are unable to link up with these groups operating without their knowledge and consent or where funds are being laundered without their knowledge and consent. An example of this played out when Senator Ahmed Datti, the vice presidential candidate of the Labour Party was compelled to issue a disclaimer when he realized that several social media platforms were in operation in this name but without his knowledge and consent. He stated that he had not operated a social media account in several years and knew nothing about the operations of these accounts. This would help the State in prosecuting anyone operating such accounts without the knowledge of the candidate and will exonerate the candidate or party of any wrongdoing on the said platforms.

In Conclusion
Neither the Nigerian 1999 Constitution, as amended nor the Electoral Act, 2022 forbids a blanket foreign donation to either political parties or their Candidates. There is a duty placed on Political parties when funds and assets have been amassed from outside the country. There is also a limit to the amount an individual can contribute in support of a candidate. It is the duty of the political party and candidates to be vigilant and to monitor the activities of support groups to forestall unlawful activities and the laundering of funds under their name.

The Crowdfunding being proposed by Nigerians in the diaspora in support of Mr. Peter Obi and his support group is within the ambit of the law as long as no single individual or entity contributes an amount in excess of N50 Million or its equivalent in any foreign currency. Every other candidate in the forthcoming election can do well to encourage support from Nigerians in the diaspora and same should be done within the ambit of the law.

Akintayo Balogun Esq., LL.B (Hons), BL, LL.M, is a legal practitioner in private practice based in Abuja, FCT. A prolific writer, public affairs analyst, and commentator on national issues. akinson6@gmail.com.

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ISAAC OGBAH COMMENDS NBA BARNAWA ON LAW WEEK

Isaac Omuta Ogbah, FICMC, a Candidate for the 3rd Vice President in the forthcoming NBA National elections sends goodwill messages to NBA Barnawa Branch as it holds its 2022 Law Week with the theme: “Understanding the Electoral Act 2022”.

Now that Nigeria is preparing for its 2022 general elections, the theme for your Law Week is timely as it would enable legal luminaries unveil every aspect of this 2022 Electoral Act in preparations for the various litigations that would follow the electoral processes.

I wish the Chairman and his executive members and the entire members of the Barnawa Branch of NBA a very successful Law Week event and I pray for journey mercies for all that would grace the Law Week event from other parts of Nigeria.

I celebrate you all now and always.

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  • EDITOR'S CHOICE
  • Mar 08, 2022
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  • Comments Off on ELECTORAL ACT 2022: LOCUS STANDI ON QUALIFYING ASPIRANTS AN ABERRATION

ELECTORAL ACT 2022: LOCUS STANDI ON QUALIFYING ASPIRANTS AN ABERRATION

In this article by DR. KAYODE AJULO, he x-rays Section 29(5) and Section 84(14) of the Electoral Act, 2022 and argues that limiting the persons who can challenge the submission of false information to INEC to only an Aspirant who participated in the primary election amounts to giving a carte blanche to political parties to indulge in impunity and continued violation of the Constitution to the detriment of electorate

LIMITATION OF LOCUS STANDI OF PERSONS WHO CAN CHALLENGE QUALIFICATION OF A CANDIDATE TO ONLY AN ASPIRANT BY SECTION 29(5) OF THE ELECTORAL ACT IS AN ABERRATION AND INIMICAL TO EFFECTIVE DEMOCRATIC GOVERNANCE.

Introduction
It is no more news that President Muhammadu Buhari on Friday, 25th February, 2022 signed the Electoral Act, 2022 into law. It suffices to recall that the said Bill was signed into law after it has suffered protracted delay and setbacks both from the Presidency and the National Assembly, particularly on the provision of the Bill which relates to mandatory direct primaries.

While commending the drafters of the Act for the wealth of industry and Mr. President for leaving behind a great legacy in our electoral process, it is pertinent to draw attention to the provision of Section 29(5) of the Act which limits the power to challenge the Constitutional qualification of a candidate for an election to only an Aspirant.

Exclusive right of a Political Party to field in candidate of its choice
Before delving into the probity or otherwise of Section 29(5) of the Electoral Act, 2022, it is pertinent to state as a prefatory that the choice of candidates by political parties for elective office being a political issue is governed by the rules, guidelines and constitution of the political party concerned and is a matter of internal affairs of the political party concerned. It is not to be questioned before any Court as it is non-justiciable. See the case of DALHATU V. TURAKI (2003) 15 NWLR (PT 843)

Furthermore, as a legal proposition, no member of a political patty has the locus standi to question the party’s prerogative right on the issue of its choice of candidates for elective office not even in the face of breaching of its rules and regulations.
The Supreme Court in the case of PDP & ORS v. EZEONWUKA & ANOR (2017) LPELR-42563(SC) held as follows:
“I dare say, The redress available to such a member who is aggrieved and who has suffered any damage as a result of refusing him nomination and sponsorship lies in damages against the political party and subject to the provision of the party constitution, rules and regulations.”

Redress available under the Electoral Act

However, the Electoral Act has made provision for instances where persons can challenge the qualification of a candidate fielded for election by a political party on the one hand and the failure of the political party to comply with its Constitution, guidelines and the provision of the Electoral Act in the conduct of primary election.

This rights were conferred by the provision of Section 31(5) and Section 87(9) of the Electoral Act, 2010 (as amended) both on “any person” in the first instance and on an “Aspirant” in the second instance.

The rationale for ensuring rights of redress and access to court have been given judicial imprimatur by the Supreme Court.

In the case of Ugwu v. Ararume (2007) FWLR (Pt.1048) 367 at 449 Noki-Tobi, J.S.C held that
“…It is certainly not the intention of the Act (Electoral Act of 2006) to gamble with an important aspect of the electoral process, such as primaries in the hands of a political party to dictate the pace in any way it likes, without any corresponding exercise of due process on the part of the aggrieved person.”

Similarly, at page 461 of the judgment Oguntade, J.S.C held as follows:
An observer of the Nigerian political scene today easily discovers that the failure of the parties to ensure intra-party democracy and live by the provisions of their Constitutions as to the emergence of candidates for elections is one of the major causes of the serious problems hindering the enthronement of a representative government in the country.

What does Section 29(5) of the Electoral Act, 2022 provide?

Section 29(5) of the Electoral Act provides as follows:
“Any Aspirant who participated in the primaries of his political party who has reasonable grounds to believe that any information given by his political party’s candidate in the affidavit or any document submitted by that candidate in relation to his constitutional requirements to contest the election is false, may file a suit at the Federal High Court against that candidate seeking that the information contained in the affidavit is false.”

A bird view of the above provision and a literal interpretation of the above section is to the effect that only an Aspirant who participated in the primaries of his political party and who has reasonable grounds to believe that a candidate of his political party submitted false information to INEC can challenge same.

Who is an Aspirant?

An aspirant is a person with a strong desire to achieve a position of importance or to win a competition. In the case of PDP & ANOR V. SYLVA & ORS (2012) LPELR-7814(SC) defined an Aspirant as follows:
An aspirant is a person with a strong desire to achieve a position of importance or to win a competition.

Indeed Section 87 (1) of the Electoral Act States that: “A political party seeking to nominate candidates for elections under this Act shall hold primaries for aspirants to all elective posts.”

From the above it is clear that an aspirant is aperson who contested the primaries. An aspirant is thus a candidate in the primaries.

Hence by parity of interpretation, it is only a person who contested at the primary election of a political party that can challenge the qualification of a candidate to contest election.

It therefore implies that by virtue of the provision of Section 29(5) of the Electoral Act, 2022, a concerned citizen, member of an opposition party, Non-Governmental Organization can no longer challenge the qualification of a candidate to contest election.

Comparison of Section 31(5) of the Electoral Act, 2015 and Section 29(5) of the Electoral Act, 2022.

In proffering argument in support of the limitation placed by Section 29(5) of the Electoral Act, 2015, it is imperative to consider a similar provision of Section 31(5) of the Electoral Act, 2015.

Section 31(5) provides as follows:
Any person who has reasonable grounds to believe that any information given by a candidate in the affidavit or any document submitted by that candidate is false may file a suit at the Federal High Court, High Court of a State or FCT against such person seeking a declaration that the information contained in the affidavit is false.

This provision of the Act has been adjudicated upon and interpreted by the tiers of Court, particularly the Supreme Court of Nigeria. In the case of LAWRENCE V. PDP & ORS(2017) LPELR-42610(SC) held as follows:
The operative words in Section 31(5) of the Electoral Act therefore are, a person”. The determination is a matter of interpretation.

I seek to state that in the interpretation of statutes, the law is trite and well entrenched that where the legislative words are clear and unambiguous, the Court must interpret and apply the words in their plain and ordinary meaning. This Court has held in a long line of cases that, it is not for the Court to re-draft a statute especially where the wordings are devoid of ambiguity or confusion. See Kotoye v. Saraki (1994) 7 NWLR (Pt.357) page 414…For all intents and purposes, the use of the words, a person” presupposes any person. It is also open ended to all and at the same time inclusive of all and without restriction or exclusion. The fact that one is a member of a particular political party or not, is of no relevance but is all embracing.
See also the case of PDP V. INEC & ORS (2014) LPELR-23808(SC).

It is opined that limiting the persons who can challenge the submission of false information to INEC under the provision of Section 66(i) of the 1999 Constitution and other relevant sections to only an Aspirant who participated in the primary election as done under Section 29(5) of the Electoral Act, 2022 amounts to giving a carte blanche to political parties to indulge in impunity and continued violation of the provisions of the Constitution to the detriment of electorates and the Nigerian Citizens.

The Supreme Court while berating such acts of impunity in the case of SALEH V. ABAH & ORS held as follows:
“The culture of impunity exhibited by the 1st and 3rd Defendants continued unabated with 2nd Defendant, INEC declaring 3rd Defendant not only eligible but the winner of the said general elections 2015 (sic) and returned him unopposed as the Honorable member for the said Federal constituency on the platform of 1st Defendant, PDP, as other registered Political parties fielded no candidates at the general election 2015. The era of political parties presenting candidates holding public offices at Local, State and National levels with forged certificates which still persists in the polity needs to be addressed urgently by relevant law enforcement agencies and other stakeholders (and we add-including Courts) in this nascent democracy (Emphasis ours).”

The Apex Court further held as follows:
This Court must take the lead, in righting the wrongs in our society, if and when the opportunity presents itself as in this appeal. Allowing criminality and certificate forgery to continue to percolate into the streams, waters and oceans of our national polity would only mean our waters are and will remain dangerously contaminated. The purification efforts must start now, and be sustained as we seek, as a nation, to now ‘change’ from our old culture of reckless impunity.

The Nigerian Constitution is supreme. It desires that no one who had ever presented forged certificate to INEC should contest election into Nigeria’s National Assembly. This is clear and sacrosanct…

More compelling as a judicial determination had been taken by no less a technical panel sitting in, at least, a panel of three judges as Election Tribunal with constitutional mandate to determine such issues as they relate to elections and its outcomes, including eligibility. This has also been affirmed by the trial Court in this appeal. On these issues, our duty is to apply the Constitution and the law in its start, original form undiluted by colourated interpretations.

Flowing from the above, disempowering concerned citizens who has no political interest from challenging the qualification of a candidate who presented false information or forged certificate to INEC will only allow criminality and certificate forgery to continue to percolate into the streams, waters and oceans of our national polity and would only mean our waters are and will remain dangerously contaminated.

Presentation of false information or forged Certificate to INEC is a violation of the provisions of the Constitution and any person who believes that there is a violation of the Constitution ought to be allowed to approach the court to seek redress.

On this point, it is also imperative to draw attention to some salient questions:
a. What happens where there is only one Aspirant or where there is a consensus candidate and same has presented a forged certificate or false information to INEC?
b. What happens where an Aspirant has been bought over by the political party or its candidate?

It is also pertinent to add for the enlightenment of the unlearned that INEC cannot unilaterally disqualify a candidate from participating in an election even if same is aware of any anomaly perpetrated by the candidate or his political party.

It is therefore opined that the National Assembly must forthwith amend the provision of Section 29(5) of the Electoral Act to allow any person who believes that a candidate has submitted false information or forged certificate to INEC to approach the Court to seek a declaration of same.

On Limiting jurisdiction to challenge the qualification of a candidate and conduct of primary election to only the Federal High Court.

A careful perusal of Section 29(5) and Section 84(14) of the New Electoral Act clearly shows that the only court with jurisdiction to entertain any pre-election matter and any suit challenging presentation of false information to INEC is the Federal High Court.

The implication of the above is that the Federal High Court is spooked with a lot of pre-election matters.

One must not forget that there are other civil and criminal cases pending before the Court.

One therefore tend to wonder what befalls these other cases during pre-election period, particularly considering the limited number of judges and the fact that all pre-election matter must be concluded within a period of 180 days from the date of filing.

The Supreme Court in the case of LAU V. PDP & ORS (2017) LPELR-42800(SC) while commending the drafters of the Electoral Act, 2010(as amended) for making more courts available for Aspirants held as follows:
“Obviously, the law is not static, particularly in election matters, and what the lawmakers have done with the enactment of Section 87(9) of the Electoral Act, is to make more Courts available to aspirants, who complain that provisions of the Electoral Act and Guidelines of a Political Party, has not been complied with in nominating candidates. To insist on the narrow and limited jurisdiction exclusive to the Federal High Court under Section 251 (1) (q) (r) and {s) of the 1999 Constitution when it comes to election and election related matters, is to close the doors that was opened to such dissatisfied aspirants to seek redress in the other High Courts other than Federal High Court. This I will not do; and this issue is resolved in favour of the Appellant.”

As could be gleaned from the decision of the Apex Court, limiting the court with jurisdiction to challenge the qualification of a candidate and non-compliance with the provisions of the Electoral Act and guidelines of a political party as done in Section 29(5) and Section 84(14) of the Electoral Act, 2022 will clog the wheel of progress of politics in Nigeria, considering the large number of cases in the dockets of the Federal High Court and the limited number of Federal High Court judges.

Conclusion
On the backdrop of the above arguments and salient judicial authorities cited, it is therefore opined that to ensure free and fair election and sustenance of good governance in our polity, concerned members of the society, civil society organizations, members of the opposition party must be able to challenge the qualification of a candidate who has presented false information or forged certificate to INEC.

Similarly, the High Court of the States and the FCT should be donated with jurisdiction to entertain pre-election matters as same is time bound and requires expedite adjudication.

Ajulo, a Fellow of the Chartered Institute of Arbitrators (UK), is the Managing Partner at Castle of Law, Nigeria.

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  • EDITOR'S CHOICE
  • Nov 17, 2021
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ELECTORAL ACT: OKUTEPA BACKS NASS ON DIRECT PRIMARIES

Leading litigator and Senior Advocate of Nigeria, MR. JIBRIN OKUTEPA has chided commentators who lampoon the National Assembly for enacting direct primaries into our laws, arguing that the legislators have the sole mandate to prescribe the mode of primaries for political parties

The power to make laws for peace, order and good governance in Nigeria is vested in the National Assembly.

The constitution of the Federal Republic of Nigeria 1999 as amended says so. This is what the Constitution says in
section 4(1)-(3) thereof thus:

4. (1) The legislative powers of the Federal Republic of Nigeria shall be vested in a National Assembly for the Federation, which shall consist of a Senate and a House of Representatives.

(2) The National Assembly shall have power to make laws for the peace, order and good government of the Federation or any part thereof with respect to any matter included in the Exclusive Legislative List set out in Part I of the Second Schedule to this Constitution.

(3) The power of the National Assembly to make laws for the peace, order and good government of the Federation with respect to any matter included in the Exclusive Legislative List shall, save as otherwise provided in this Constitution, be to the exclusion of the Houses of Assembly of States.

From the above constitutional provisions the power of the National Assembly to make laws on any matter included in the Exclusive and Concurrent Legislative Lists is to the exclusion of any other persons or authorities.

The national assembly does not share its Legislative powers with political parties or Nigerian politicians.

Not too long ago the National Assembly enacted the Electoral Act to make provisions for direct primary elections in political parties in Nigeria.

This provision has not gone done well with some political actors who feel that such provision should not be made in the Electoral Act. These political actors argued albeit selfishly that primary elections of political parties are political questions and that the National Assembly has no powers to make law on political questions.

They further argued that such provisions are anti-democratic and such not be allowed.

These arguments do not appeal to me and any reasonable observers of undemocratic impositions of candidates through indirect primaries of political parties as have seen in the past. We are all witnesses to such impositions in our political experiments since the inception of civilian rule in Nigeria.

Indeed the indirect primaries of political parties had produced more political despots and tyrannical leadership in political godfathers than democratic evolutions of candidates for our elections at all levels. Indirect parties primaries had made contests for political offices more expensive and out of reach for those with ideas of how to govern Nigeria and had produced more corrupt rulers. Those who spent fortunes to get nomination by indirect primaries spend public resources to pay their political godfathers from the treasuries of the States. The arguments that the National Assembly have no power to enact law on how parties primaries shall be conducted are not rooted in constitutional logic and patriotic thinking. The National Assembly has powers to so make the law for Political parties.

By the provisions of the constitution cited hereof the National Assembly has powers to make laws on all the items in the Exclusive Legislative List.

By the provisions of item 22 of the Exclusive Legislative List the National Assembly has power to make laws on how
election to the offices of President and Vice-President or Governor and Deputy Governor and any other office to which a person may be elected under this Constitution, excluding election to a local government council or any office in such council. Therefore the National Assembly has powers to determine the mode of or the processes of how a candidate should emerge for election under the Constitution.

Again by item 56 of the 2nd Schedule of the Exclusive Legislative List the National Assembly has powers to make law on formation and regulations of political parties.

There is nothing unconstitutional in the National Assembly enacting the Electoral Act to provide for direct primary elections for political parties.That is part of its constitutional mandate to regulate the conduct of political parties.

In any case even the constitution of Nigeria does not contemplate indirect primaries of political parties as been done by very undemocratic impositions in Nigeria.

This is what the Constitution says:
223. (1) The constitution and rules of a political party shall- (a) provide for the periodical election on a democratic basis of the principal officers and members of the executive committee or other governing body of the political party.

I think that the National Assembly deserves commendations for the bold steps to democratise primaries of political parties in ensuring that members of the political parties and not few money bags have a say in those to fly the flags of their political parties.

Kudos to the National Assembly.

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  • EDITOR'S CHOICE
  • Jul 18, 2021
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  • Comments Off on E-RESULTS: ‘LAW MAKERS AS LAW BREAKERS,’ BY UBANI

E-RESULTS: ‘LAW MAKERS AS LAW BREAKERS,’ BY UBANI

In this article, DR. MONDAY UBANI, Chairman of the Nigerian Bar Association Section on Public Interest and Development Law (NBA-SPIDEL) reviews ongoing efforts by the National Assembly to amend the Electoral Act and accuses the lawmakers of “legislative rascality”

The furore in the national assembly over the recent amendment of the electoral bill has not escaped the attention of millions of Nigerians who have been following the said exercise with religious interest.

The process of recruitment of leadership in Nigeria has been a big problem with the country having a fair share of mis-governance as unintended consequence flowing from unfair electoral process over the years. You cannot plant maize and reap mango says an African proverb.

The affliction of bad leadership stems from defective electoral process that is devoid of any iota of fairness. We are beset with electoral manipulations, ballot snatching, result-falsifications and all manner of electoral frauds from desperate politicians and their thugs who pervert the process to ascend to power.

The consequence is that those who emerge and occupy political positions in Nigeria do so fraudulently without any mandate fairly donated by the people, thereby breaching the fundamental term of the famed social contract theory propounded by early philosophers that led to formation of modern society.

For us as a nation, life just like in the beginning, has remained short, nasty and brutish despite being on the historical side of modernity. Is any one in doubt in Nigeria that our leadership has deliberately kept the country retarded, visionless and crisis-ridden since independence? Why, you may ask.

The answer is not far-fetched, you cannot give what you do not have. Leaders who know nothing about governance and the attendant responsibilities attached to it, unfortunately find themselves in corridors of power and have not failed to dish out mediocrity as their valuable asset.

All critical infrastructures are in total decay while our Institutional services are non-existent.

While pursuing my first degree in University of Nigeria, Nsukka I saw British, Americans and some African brothers in my respected Alma Mata either for their first degrees or pursuing their post graduate studies.
As at today, you will not see any of our African brothers or sisters in our universities let alone other students from other continents. Again the reasons are not far-fetched and does not require any elaboration.

The truth remains that we have had enough share of misgovernance, lack of development or progress due to inept leadership and the recruitment process is clearly implicated.

Stakeholders and patriots have diagnosed Nigeria’s sad historical trajectory and agreed amongst other solutions that we need to holistically tinker with our electoral legal framework which needs realignment with modern realities and international best practices.

One of these desired broad electoral reforms involves the deployment of technology in our electoral process.

It is shameful that Nigeria with her size, resources and sophistication are even starting late on this, because other nations smaller in size, resource, sophistication have deployed this system years ago and here we are in the year 2021 debating whether we should deploy technology in the transmission of our electoral results.

I feel humiliated by such scenario playing out in the hallowed Chambers of our National Assembly. Who does that, if I may ask.

The macabre dance over this started in the National Assembly with confirmed allegation that the Bill which passed third reading under the chairmanship of Senator Kabiru Gaya of INEC Committee has been altered to block electronic transfer of election results.

The Senate President called Nigerians every printable names for daring to challenge the alleged alterations. They had to restore the electronic transfer clause, and I am sure, it was done grudgingly.

During the clause-by-clause consideration of the bill, their treachery could not be hidden any longer as one Senator Sabi Abdullahi, Deputy Senate Whip proposed that the Nigerian Communications Commission(NCC) must certify that national coverage is adequate and secure while the National Assembly must approve before the Independent National Electoral Commission (INEC) can transmit election results.

This was promptly countered by Albert Bassey, Senator representing Akwa Ibom North-East who insisted that the initial proposal which provides in Section 50(3) that:

“The Commission may transmit results of elections by electronic means where and when practicable” should stay.

After division of the whole house in plenary, the result was 52 in favour of subjecting INEC to undue interference in the performance of their mandatory duty of organising elections in Nigerian by Nigerian Communication Communication and the National Assembly contrary to the express provision of the constitution, while 28 Senators voted for the retention of the original clause that gives INEC discretionary power in carrying out its constitutional responsibility in transmission of results.

The situation in the House of Representatives was not different but more dramatic as the man who presided over the plenary did not hide his disdain to observance of the very rules that guide proceedings in the House. The Deputy Speaker, Hon Ahmed Wase to say the least is a big minus to democracy who does not believe in adherence to rules and procedures of the House. He and his majority leader, Alhassan Ado-Doguwa are in the world of their own. By their attitude they own Nigeria, House of Representatives and everything in it, to say the least.

WHY THIS AMENDMENT SHOULD NOT SEE THE LIGHT OF THE DAY.
What the National Assembly members did by passing a bill that clearly violates the constitution they swore to uphold is the biggest embarrassment of the century. It is more shocking and depressing to see those who claim to be lawyers amongst them running around all over the place to defend the absurd illegality. Who did this to us as a nation?
How did we get here, many are asking.

A cursory look at the provisions of the constitution will give each observer a clearer view of the sordid absurdity in the passage of the bill by the National Assembly on the 16th of July, 2021.

Section 78 of the 1999 constitution as Amended provides:-
“The registration of voters AND CONDUCT of elections shall be subject to the DIRECTION AND SUPERVISION OF INDEPENDENT NATIONAL ELECTORAL COMMISION,(INEC).

The same constitution in the Third Schedule, Part 1, F, S.15 provides that: “INEC has power TO ORGANIZE, UNDERTAKE, AND SUPERVISE ALL ELECTIONS”. The constitution further provides that in carrying out the aforementioned responsibilities, “INEC operations SHALL not be SUBJECT TO THE DIRECTION OF ANYBODY OR AUTHORITY”.

The question then, is the so called affirmation of network coverage and its security by NCC and approval of the National Assembly(a party to an election) not an undue interference to INEC’s power to transmit the result of an election which falls squarely under their constitutional power?
How did the members of the National Assembly see their role in approving the issue of network coverage as proper under our constitutional democracy when the role assigned by the constitution to them is LEGISLATION and not EXECUTION of the laws they enact?

I shudder to think that our legislators who are law makers have turned themselves into law breakers.

Prior to now, INEC without any legislative backing have successfully conducted elections with card readers and have transmitted results electronically in several constituencies in Nigeria without any of these “alarmist drawbacks” being trumpeted by these backward-thinking legislators that voted for that provocative amendment. Why are these set of legislators in the 9th Assembly trying to set the hand of our clock backwards? What have come over them?

Nigerians insist and I join them in insisting that INEC be given a fair and less restrictive legal framework to carry out their constitutional duties of organising, undertaking and supervising elections in Nigeria.

The present manipulative treachery to keep us stranded as a nation in our electoral improvements will be resisted with our last strength and we have the final hope placed on the third arm of the government( the judiciary) should these set of legislators persist in their doomed journey of interfering on our progressive electoral journey as a nation.

Nigeria has two years to ensure 100 per cent network coverage in the whole country, after all, the Nation is alleged to have voted over 4 billion naira recently to monitor Nigerians on social media platforms. I see no reason why we cannot vote more billions of naira for development of our key telecommunication infrastructure that will restore our dignity as the biggest country in African continent. #SayNoToLegislativeRascality.

Dr Monday Onyekachi Ubani,
Chairman, NBA-Section on Public Interest and Development Law (SPIDEL).

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